Recent Developments And Limits On The Duty To Accommodate
|Author:||Mr Richard Nixon and Wendy-Anne Berkenbosch|
By this point in time, it is presumed that most employers are familiar with the need to avoid discrimination and to reasonably accommodate disabled employees to the point of undue hardship. When it comes to actually applying the duty to accommodate, however, it can be difficult to gauge what is required in order to satisfy the stringent standards applied by labour arbitrators, human rights panels and courts.
While there are many protected grounds of discrimination, this paper will provide a brief analysis of the basic principles underlying the duty to accommodate employees with disabilities, followed by a survey of recent cases of interest on the duty to accommodate more generally.
THE ONTARIO HUMAN RIGHTS CODE
The starting point for human rights law in Ontario is the Human Rights Code. The Human Rights Code prohibits discrimination in employment based on a number of grounds. In particular, s. 5 of the Code provides as follows:
5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.
The term "employment" is not defined in the Human Rights Code. However, Canadian courts have given human rights legislation a broad, liberal and purposive interpretation. In general, an employment relationship exists when an individual earns their livelihood from the relationship. It has also been held that a person is an employer where the person controls, at least to some extent, the ability of a person to earn a livelihood.
Constructive discrimination is prohibited unless the requirement, qualification or factor in question is reasonable and bona fide in the circumstances. For a requirement, qualification or factor to be reasonable and bona fide it must be established that the person cannot be accommodated without undue hardship.
The relevant section reads:
11. (1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,
the requirement, qualification or factor is reasonable and bona fide in the circumstances; or it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right. Idem
(2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardshipon the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any [emphasis added]
The Code also provides for an exception where the person is incapable of performing his or her essential duties because of a disability. The section is only available where the person cannot be accommodated without undue hardship. The relevant section reads:
17. (1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability.
(2) No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardshipon the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any. [emphasis added]
THE CANADIAN HUMAN RIGHTS ACT
Discrimination in employment is prohibited on several grounds under the Canadian Human Rights Act:
Prohibited grounds of discrimination
3. (1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.
7. It is a discriminatory practice, directly or indirectly,
to refuse to employ or continue to employ any individual, or in the course of employment, to differentiate adversely in relation to an employee, on a prohibited ground of discrimination.
There are several exceptions in section 15 of the Act which permit discrimination on prohibited grounds. The most relevant exception is for bona fide occupational requirements ("BFOR"). This exception is only available where the person cannot be accommodated without undue hardship.
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